EXHIBIT 4
SERVICER RESIGNATION, APPOINTMENT, ASSUMPTION AND AMENDMENT AGREEMENT
XXXXXX XXXXXXX XXXX XXXXXX CAPITAL I INC. TRUST 2002-HE2
THIS SERVICER RESIGNATION, APPOINTMENT, ASSUMPTION AND AMENDMENT
AGREEMENT, dated as of December 1, 2004 (the "Agreement"), is by and among
XXXXXX XXXXXXX XXXX XXXXXX CAPITAL I INC. ("Depositor"), THE PROVIDENT BANK
("Provident"), INDYMAC BANK, F.S.B. ("IndyMac") (Provident and IndyMac each a
"Servicer" and, collectively, the "Servicers"), XXXXXX LOAN SERVICING LP
("Xxxxxx," or "Successor Servicer"), and DEUTSCHE BANK NATIONAL TRUST COMPANY,
as trustee ("Trustee"):
W I T N E S S E T H:
WHEREAS, the XXXXXX XXXXXXX XXXX XXXXXX CAPITAL I INC. TRUST 2002-HE2 (the
"Trust") was created pursuant to the Pooling and Servicing Agreement identified
on Schedule 1.1.A hereto (as amended from time to time, the "Servicing
Agreement") among Depositor, the Servicers and Trustee;
WHEREAS, Provident is a Servicer under the Servicing Agreement;
WHEREAS, Provident desires to resign as a Servicer pursuant to Section
6.04 of the Servicing Agreement and have Xxxxxx appointed as a successor
Servicer in accordance with provisions of that Section;
WHEREAS, the Trustee and the Depositor desire to accept the resignation of
Provident as a Servicer, and acknowledge the succession of Xxxxxx to Provident
as a Servicer pursuant to Sections 6.04 and 10.01 of the Servicing Agreement;
and
WHEREAS, the parties hereto desire to amend the Servicing Agreement
pursuant to Section 10.01 thereof to better effectuate the replacement of
Provident as a Servicer as provided herein.
NOW THEREFORE, for and in consideration of good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
of the mutual covenants herein contained, the parties hereto hereby agree as
follows:
1. Resignation, Assignment and Appointment of Servicer. (a) Provident
hereby (i) proposes that Xxxxxx be appointed as a successor Servicer to
Provident under the Servicing Agreement and the other Transaction Documents (if
any), (ii) resigns from its duties as a Servicer under the Servicing Agreement
and the other Transaction Documents (if any), effective on the Closing Date, and
(iii) irrevocably assigns and otherwise conveys to Xxxxxx, effective on the
Closing Date, all of its right, title and interest in and to any and all of its
rights as a Servicer under the Servicing Agreement and the other Transaction
Documents (if any).
(b) The parties hereto, subject to the requirements of Section 5 hereof,
hereby consent to the resignation of Provident as a Servicer and the appointment
of Xxxxxx as a Servicer to replace Provident, find such appointment to be
acceptable and hereby acknowledge that pursuant to Sections 6.04 and 10.01 of
the Servicing Agreement, Xxxxxx has been designated as a Servicer under the
Transaction Documents for all purposes from and after the Closing Date. Neither
the Trustee nor the Successor Servicer shall have any responsibility or
obligation for any act or omission of the predecessor Servicer. Subject to the
terms of the Servicing Agreement, as clarified below (including without
limitation any indemnification obligations contained in Sections 6.05 and 8.12
thereof and the standards of care set forth in Section 3.01(a) thereof, as
clarified below, which the parties hereto expressly agree shall survive
Provident's resignation as Servicer with respect to any actions or omissions by
Provident prior to the Closing Date), from and after the Closing Date, Provident
shall be released from and shall have no further obligations as Servicer under
the Transaction Documents. For purposes of clarity, the language contained in
Section 3.01(a) of the Servicing Agreement to the effect that (a) the Servicer
shall service and administer the Mortgage Loans in accordance with the terms of
the Servicing Agreement and the respective Mortgage Loans, and, to the extent
consistent with such terms, in the same manner in which it services and
administers similar mortgage loans for its own portfolio, giving due
consideration to customary and usual standards of practice of mortgage lenders
and loan servicers administering similar mortgage loans and (b) the Servicer
shall service and administer the Mortgage Loans in accordance with applicable
state and federal law, shall be deemed to require that, in the context of the
transfer of servicing effectuated by this Agreement (and in order to be in
strict compliance with the provisions of the Servicing Agreement), each of
Provident and Xxxxxx, severally, shall be required (i) to take such actions in
connection with such servicing transfer as are required by applicable state and
federal law and (ii) subject to clause (i), to conduct itself in connection with
such transfer in a manner consistent with the standards and practices usually
employed by it in effecting servicing transfers of mortgage loans similar to the
Mortgage Loans, giving due consideration to the customary and usual standards of
practice of mortgage lenders and loan servicers engaged in servicing transfers
of servicing obligations related to mortgage loans similar to the Mortgage
Loans. Additionally, each of Provident and Xxxxxx shall: (A) reasonably
cooperate with Depositor and Trustee in connection with the Trust's satisfying
the reporting requirements under the Securities Exchange Act of 1934, as
amended, and (B) provide the information, letters, reports, and/or
certifications required to be provided by a Servicer pursuant to Sections 3.22,
3.23 and 8.12 of the Servicing Agreement; in each case, with respect to the
periods during which Provident or Xxxxxx, as applicable, served or is serving as
Servicer.
(c) Xxxxxx hereby (i) accepts the assignment of rights as a Servicer by
Provident, (ii) accepts the appointment as a Servicer under the Servicing
Agreement and the other Transaction Documents (if any), and (iii) assumes and
agrees to discharge the due and punctual performance and observance of each
covenant and condition to be performed and observed by a Servicer under the
Servicing Agreement and the other Transaction Documents (if any), in each case,
from and after the Closing Date.
(d) Promptly following the Closing Date, each account that, pursuant to
the terms of the Transaction Documents, is required to be established and
maintained by Provident as a Servicer shall thereafter be moved to and
maintained by the Successor Servicer at Wachovia Bank National Association;
provided, however, that such accounts shall continue to be required to satisfy
all requirements for such accounts under the Transaction Documents. This
Agreement shall be deemed to satisfy any and all requirements contained in any
Transaction Document for notice of change in any such account.
2. Amendments to Servicing Agreement. Effective as of the Closing Date,
the Servicing Agreement is hereby amended as follows:
(a) Article I of the Servicing Agreement is hereby amended to add the
following definition:
Successor Servicer: Xxxxxx Loan Servicing LP, as successor servicer
pursuant to that certain Servicer Resignation, Appointment,
Assumption and Amendment Agreement dated as of December 1, 2004,
among The Provident Bank, Xxxxxx Loan Servicing LP, IndyMac Bank,
F.S.B., the Depositor, and the Trustee.
(b) Subsection 3.02(a)(ii) of the Servicing Agreement shall be deleted in
its entirety and replaced with the following:
"(ii) an institution approved as a Title II Nonsupervised Lender by
the Federal Housing Administration or an institution that has
deposit accounts insured by the FDIC."
(c) Section 10.07 of the Servicing Agreement is amended as follows:
(i) The first sentence of Section 10.07 is hereby amended to read in its
entirety as follows:
"(a) Notwithstanding anything to the contrary contained herein,
except as provided in Section 6.02, this Agreement may not be
assigned by a Servicer without the prior written consent of the
Trustee and the Depositor; provided, however, each Servicer is
hereby authorized to enter into an Advance Facility which complies
with Section 10.07(b) or Section 10.07(c), as applicable.
(b) Each Servicer is hereby authorized to enter into an Advance
Facility under which (1) the Servicer sells, assigns or pledges to
an Advancing Person the Servicer's rights under this Agreement to be
reimbursed for any P&I Advances or Servicing Advances and/or (2) an
Advancing Person agrees to fund some or all P&I Advances or
Servicing Advances required to be made by the Servicer pursuant to
this Agreement."
(ii) The remaining portion of existing Section 10.07 shall continue to
exist in its current form, as the remaining portion of clause (b),
immediately following the first sentence of clause (b) described
above; provided that the reference to "this Section 10.07" in the
last paragraph thereof shall be amended to read "this Section
10.07(b)."
(iii) A new clause (c) is added to Section 10.07 of the Servicing
Agreement, immediately following the last sentence of existing
Section 10.07, which shall read in its entirety as follows:
"(c) For so long as Xxxxxx is a Servicer hereunder, Xxxxxx is hereby
also authorized to enter into an Advance Facility that complies with
the requirements of this Section 10.07(c) in lieu of the
requirements of Section 10.07(b). The requirements are as follows:
(i) Xxxxxx is hereby authorized to enter into an Advance
Facility, the documentation for which complies with Sections
10.07(c)(ii), (c)(iii) and (c)(v) below, under which (A) the
Servicer assigns or pledges its rights under this Agreement to be
reimbursed for any or all Advances and/or Servicing Advances to (1)
a Person, which may be a special-purpose bankruptcy-remote entity
(an "SPV"), (2) a Person, which may simultaneously assign or pledge
such rights to an SPV or (3) a lender (a "Lender"), which, in the
case of any Person or SPV of the type described in either of the
preceding clauses (1) or (2), may directly or through other
assignees and/or pledgees, assign or pledge such rights to a Person
which may include a trustee acting on behalf of holders of debt
instruments (any such Person or any such Lender, an "Advance
Financing Person"), and/or (B) an Advance Financing Person agrees to
fund all of the P&I Advances and/or Servicing Advances required to
be made by Xxxxxx pursuant to this Agreement. No consent of the
Trustee, Certificateholders or any other party shall be required
before Xxxxxx may enter into an Advance Facility nor shall the
Trustee or the Certificateholders be a third party beneficiary of
any obligation of an Advance Financing Person to Xxxxxx.
Notwithstanding the existence of any Advance Facility under which an
Advance Financing Person agrees to fund P&I Advances and/or
Servicing Advances, (A) Xxxxxx (i) shall remain obligated pursuant
to this Agreement to make P&I Advances and/or Servicing Advances
pursuant to and as required by this Agreement and (ii) shall not be
relieved of such obligations by virtue of such Advance Facility and
(B) neither the Advance Financing Person nor the Xxxxxx Assignee (as
hereinafter defined) shall have (i) any right to proceed against or
otherwise contact any Mortgagor for the purpose of collecting any
payment that may be due with respect to any related Mortgage Loan or
enforcing any covenant of such Mortgagor under the related Mortgage
Loan documents or (ii) any rights under or in respect of this
Agreement that are any greater than the rights of Xxxxxx hereunder.
(ii) If Xxxxxx enters into an Advance Facility, Xxxxxx and the
related Advance Financing Person shall deliver to the Trustee at the
address set forth in Section 10.05 hereof a written notice (an
"Advance Facility Notice"), stating (A) the identity of the Advance
Financing Person, (B) the identity of the Person (the "Xxxxxx
Assignee") that will, subject to satisfaction of the requirements in
Section 10.07(c)(iii) hereof, have the right to make withdrawals
from the Collection Account pursuant to Section 3.11 hereof to
reimburse previously xxxxxxxxxxxx X&X Advances and/or Servicing
Advances ("Advance Reimbursement Amounts") and (C) that the Advance
Financing Person and The Xxxxxx Assignee have each been provided
with copies of this Agreement, including this Section 10.07(c) and
agree to be bound by the provisions of this Section 10.07(c) and
acknowledges that its rights may be exercised only as provided, and
subject to the conditions, herein. The Advance Facility Notice shall
be executed by the Advance Financing Person, Xxxxxx, and the Xxxxxx
Assignee. Advance Reimbursement Amounts (A) shall consist solely of
amounts in respect of P&I Advances and/or Servicing Advances for
which Xxxxxx would be permitted to reimburse itself in accordance
with Section 3.11 hereof, assuming Xxxxxx had made the related P&I
Advance(s) and/or Servicing Advance(s) and (B) shall not consist of
amounts payable to a successor Servicer in accordance with Section
3.11 hereof to the extent permitted under Section 10.07(c)(v) below.
(iii) Notwithstanding the existence of an Advance Facility,
Xxxxxx, on behalf of the Advance Financing Person, shall be entitled
to continue to withdraw Advance Reimbursement Amounts in accordance
with Section 3.11 hereof. Litton's entitlement to withdraw Advance
Reimbursement Amounts may be terminated by the Advance Financing
Person pursuant to a written notice to the Trustee delivered in the
manner set forth in Section 10.05 hereof. Upon receipt of a written
notice of termination that satisfies the requirements of this
Section 10.07(c)(iii), Xxxxxx shall no longer be entitled to
withdraw Advance Reimbursement Amounts from the Collection Account
and the Xxxxxx Assignee shall thereafter have the right to withdraw
from the Collection Account all Advance Reimbursement Amounts when
and to the extent such amounts are payable to Xxxxxx pursuant to the
terms of Section 3.11 hereof. Notwithstanding the foregoing, and for
the avoidance of doubt, (A) Xxxxxx and/or the Xxxxxx Assignee shall
only be entitled to reimbursement of Advance Reimbursement Amounts
hereunder pursuant to Section 3.11 of this Agreement and shall be
required to return to the Trustee, for the benefit of the
Certificateholders, all amounts, with interest, withdrawn by it in
error or that are in excess of Litton's entitlement thereto under
this Agreement, and shall not otherwise be entitled to make
withdrawals of, or receive, Advance Reimbursement Amounts that shall
be deposited in the Distribution Account pursuant to Section 3.11 or
Section 3.07(d) hereof, and (B) none of the Trustee or the
Certificateholders shall have any right to, or otherwise be entitled
to, receive any Advance Reimbursement Amounts to which Xxxxxx or the
Xxxxxx Assignee, as applicable, shall be entitled pursuant to
Section 3.11 hereof. An Advance Facility may be terminated by the
joint written direction of Xxxxxx and the related Advance Financing
Person. Written notice of such termination shall be delivered to the
Trustee in the manner set forth in Section 10.05 hereof. None of the
Depositor or the Trustee shall, as a result of the existence of any
Advance Facility, have any additional duty or liability with respect
to the calculation or payment of any Advance Reimbursement Amount,
nor, as a result of the existence of any Advance Facility, shall the
Depositor or the Trustee have any additional responsibility,
including without limitation, to track or monitor the administration
of the Advance Facility or the payment of Advance Reimbursement
Amounts to the Xxxxxx Assignee. Xxxxxx shall indemnify the
Depositor, the Trustee, any successor Servicer and the Trust Fund
for any claim, loss, liability or damage resulting from any claim by
the related Advance Financing Person, except to the extent that such
claim, loss, liability or damage resulted from or arose out of
negligence, recklessness or willful misconduct on the part of the
Depositor, the Trustee or any successor Servicer, as the case may
be, or failure by the successor Servicer to remit funds as required
by this Agreement or the commission of an act or omission to act by
the successor Servicer and the passage of any applicable cure or
grace period, such that an Event of Default under this Agreement
occurs or such entity is subject to termination for cause under this
Agreement. Xxxxxx shall maintain and provide to any successor
Servicer and, upon request, the Trustee a detailed accounting on a
loan-by-loan basis as to amounts advanced by, pledged or assigned
to, and reimbursed to any Advance Financing Person. The successor
Servicer shall be entitled to rely on any such information provided
by the predecessor Servicer, and the successor Servicer shall not be
liable for any errors in such information.
(iv) An Advance Financing Person who receives an assignment or
pledge of rights to receive Advance Reimbursement Amounts and/or
whose obligations are limited to the funding of P&I Advances and/or
Servicing Advances pursuant to an Advance Facility shall not be
required to meet the criteria for qualification as a Subservicer.
(v) As between Xxxxxx and its Advance Financing Person, on the
one hand, and a successor Servicer and its Advance Financing Person,
if any, on the other hand, Advance Reimbursement Amounts on a
loan-by-loan basis with respect to each Mortgage Loan as to which a
P&I Advance and/or Servicing Advance shall have been made and be
outstanding shall be allocated on a "first-in, first out" (FIFO)
basis. In the event the Xxxxxx Assignee shall have received some or
all of an Advance Reimbursement Amount related to P&I Advances
and/or Servicing Advances that were made by a Person other than
Xxxxxx or its related Advance Financing Person in error, then the
Xxxxxx Assignee shall be required to remit any portion of such
Advance Reimbursement Amount to each Person entitled to such portion
of such Advance Reimbursement Amount. Without limiting the
generality of the foregoing, Xxxxxx shall remain entitled to be
reimbursed by the Advance Financing Person for all P&I Advances
and/or Servicing Advances funded by Xxxxxx to the extent the related
Advance Reimbursement Amounts have not been assigned or pledged to
such Advance Financing Person or the Xxxxxx Assignee.
(vi) For purposes of Section 4.01(d) hereof, any
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance
referred to therein may have been made by Xxxxxx or any predecessor
Servicer. In making its determination that any P&I Advance or
Servicing Advance theretofore made has become a Nonrecoverable P&I
Advance or Nonrecoverable Servicing Advance, Xxxxxx shall apply the
same criteria in making such determination regardless of whether
such P&I Advance or Servicing Advance shall have been made by Xxxxxx
or any predecessor Servicer.
(vii) The parties hereto hereby acknowledge and agree that:
(A) the P&I Advances and/or Servicing Advances financed by and/or
pledged to an Advance Financing Person under any Advance Facility
are obligations owed to Xxxxxx payable only from the cash flows and
proceeds received under this Agreement for reimbursement of P&I
Advances and/or Servicing Advances only to the extent provided
herein, and the Trustee and the Trust are not, as a result of the
existence of any Advance Facility, obligated or liable to repay any
P&I Advances and/or Servicing Advances financed by the Advance
Financing Person; (B) Xxxxxx will be responsible for remitting to
the Advance Financing Person the applicable amounts collected by it
as reimbursement for P&I Advances and/or Servicing Advances funded
by the Advance Financing Person, subject to the provisions of this
Agreement; and (C) the Trustee shall not have any responsibility to
track or monitor the administration of the financing arrangement
between Xxxxxx and any Advance Financing Person.
(viii) Any amendment to this Section 10.07(c) or to any other
provision of this Agreement that may be necessary or appropriate to
effect the terms of an Advance Facility as described generally in
this Section 10.07(c), including amendments to add provisions
relating to a successor Servicer, may be entered into by the
Trustee, the Depositor, and each Servicer, without the consent of
any Certificateholder, notwithstanding anything to the contrary in
this Agreement, upon receipt by the Trustee of an Opinion of Counsel
that such amendment has no material adverse effect on the
Certificateholders or written confirmation from the Rating Agencies
that such amendment will not adversely affect the ratings on the
Certificates."
(d) Section 6.02 of the Servicing Agreement shall be amended by adding the
following paragraph at the end thereof:
"Notwithstanding the provisions of the first paragraph of this
Section 6.02, the Depositor, the Servicer and the Trustee
acknowledge and agree that the Successor Servicer is a limited
partnership formed under the laws of Delaware. Successor Servicer
hereby agrees to keep in full effect its existence, rights and
franchises as a limited partnership under the laws of the State of
Delaware and will obtain and preserve its qualification to do
business in each jurisdiction in which it is or shall be necessary
to protect the validity and enforceability of the Agreement or any
of the Mortgage Loans or to perform its respective duties under the
Agreement, as modified from time to time."
(e) From and after the Closing Date, all references in the Servicing
Agreement and any other Transaction Documents (if any) to a "Servicer" shall
refer to Xxxxxx as a Servicer or any other "Servicer" (as defined in the
Servicing Agreement) until such time, if any, as a successor shall have taken
its place in accordance with the applicable provisions of the Transaction
Documents.
3. Representations and Warranties of Xxxxxx. (a) Xxxxxx, as successor
Servicer, hereby represents and warrants as of the Closing Date as follows:
(i) Xxxxxx is a limited partnership formed under the laws of
Delaware, is validly existing and in good standing under the laws of the
state of its organization and has the organizational power and authority
to own its assets and to transact the business in which it is currently
engaged. Xxxxxx is duly qualified to do business as a foreign organization
and is in good standing in each jurisdiction in which the character of the
business transacted by it or any properties owned or leased by it requires
such qualification and in which the failure so to qualify would have a
material adverse effect on its business, properties, assets, or condition
(financial or otherwise);
(ii) Xxxxxx has the organizational power and authority to make,
execute, deliver, and perform this Agreement and all of the transactions
contemplated under this Agreement and to perform the duties of the
Servicer under the Servicing Agreement and other Transaction Documents (if
any), and has taken all necessary organizational action to authorize the
execution, delivery, and performance of this Agreement. When executed and
delivered, this Agreement will constitute Litton's legal, valid and
binding obligation enforceable in accordance with its terms, except as
enforcement of such terms may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally and
by the availability of equitable remedies;
(iii) Xxxxxx is not required to obtain the consent of any other party
or any consent, license, approval or authorization from, or registration
or declaration with, any governmental authority, bureau or agency in
connection with the execution, delivery, performance, validity, or
enforceability of this Agreement, and the performance of the duties of the
Servicer under the Servicing Agreement and other Transaction Documents (if
any), except for such consent, license, approval or authorization, or
registration or declaration, as shall have been obtained or filed, as the
case may be, prior to the date hereof;
(iv) The execution, delivery and performance of this Agreement by
Xxxxxx will not violate any provision of any existing law or regulation or
any order or decree of any court applicable to Xxxxxx or any of Litton's
properties or any provision of its organizational documents, or constitute
a material breach of any mortgage, indenture, contract or agreement to
which it is a party or by which it may be bound;
(v) Xxxxxx is an approved servicer for Xxxxxx Xxx and an approved
servicer for FHLMC in good standing;
(vi) No litigation is pending against Xxxxxx that would materially
and adversely affect the execution, delivery or enforceability of this
Agreement or the ability of Xxxxxx to service the Mortgage Loans or to
perform any of its other obligations under the Transaction Documents in
accordance with the terms hereof or thereof;
(vii) The execution and delivery of this Agreement by Xxxxxx, the
servicing of the Mortgage Loans under the Servicing Agreement, the
consummation by Xxxxxx of any other of the transactions herein
contemplated, and the fulfillment of or compliance with the terms hereof
are in the ordinary course of business of Xxxxxx; and
(viii) Xxxxxx has a net worth of at least $30,000,000.
(b) The representations and warranties set forth in this Section 3 shall
survive the closing of this Agreement. Upon discovery of a breach of any
representation or warranty that materially and adversely affects the interests
of the Certificateholders, the Person discovering such breach shall give prompt
written notice to the Depositor, and the Trustee.
(c) From and after the appointment of Xxxxxx as Servicer under Transaction
Documents, the representations and warranties of Xxxxxx set forth in Section
3(a) shall constitute, for all purposes, the representations and warranties of
the Servicer as otherwise stated in Section 2.03(a) of the Servicing Agreement
and Schedule III thereof.
4. Representations and Warranties of Provident. (a) Provident hereby
represents and warrants as of the Closing Date as follows:
(i) Provident is an Ohio banking corporation, validly existing and
in good standing under the laws of the state of its organization and has
the organizational power and authority to own its assets and to transact
the business in which it is currently engaged. Provident is duly qualified
to do business as a foreign organization and is in good standing in each
jurisdiction in which the character of the business transacted by it or
any properties owned or leased by it requires such qualification and in
which the failure so to qualify would have a material adverse effect on
its business, properties, assets, or condition (financial or other);
(ii) Provident has the organizational power and authority to make,
execute, deliver, and perform this Agreement and all of the transactions
contemplated under this Agreement and has taken all necessary
organizational action to authorize the execution, delivery, and
performance of this Agreement. When executed and delivered, this Agreement
will constitute Provident's legal, valid and binding obligation
enforceable in accordance with its terms, except as enforcement of such
terms may be limited by bankruptcy, insolvency or similar laws affecting
the enforcement of creditors' rights generally and by the availability of
equitable remedies;
(iii) Provident is not required to obtain the consent of any other
party or any consent, license, approval or authorization from, or
registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity,
or enforceability of this Agreement, except for such consent, license,
approval or authorization, or registration or declaration, as shall have
been obtained or filed, as the case may be, prior to the date hereof; and
(iv) The execution, delivery and performance of this Agreement by
Provident will not violate any provision of any existing law or regulation
or any order or decree of any court applicable to Provident or any of
Provident's properties or any provision of its organizational documents,
or constitute a material breach of any mortgage, indenture, contract or
agreement to which it is a party or by which it may be bound.
(b) The representations and warranties set forth in this Section 4 shall
survive the closing of this Agreement. Upon discovery of a breach of any
representation or warranty which materially and adversely affects the interests
of the Certificateholders, the Person discovering such breach shall give prompt
written notice to the Depositor, and Trustee. Within 30 days of its discovery or
its receipt of notice of breach or, with the prior written consent of a
Responsible Officer of the Trustee, such longer period specified in such consent
Provident shall cure such breach in all material respects.
5. Pre-Closing, Closing and Conditions to Close. (a) On or after the
Pre-Closing Date, the Servicer and the Successor Servicer shall send any notices
of the proposed transfer of servicing required under the Federal Real Estate
Settlement Procedures Act. On or before the Pre-Closing Date, the parties shall
deliver or cause to be delivered in escrow, to the Closing Escrow Agent, fully
executed originals of the following items, in form and substance satisfactory to
each of the Depositor, the Trustee, the Servicer, and the Successor Servicer:
(i) a fully executed copy of this Agreement;
(ii) a Confirmation Letter from each Rating Agency or a letter from
each Rating Agency confirming that each such Rating Agency is prepared to
deliver a Confirmation Letter on the Closing Date;
(iii) an Officer's Certificate of Provident to the effect that (A)
this Agreement and the other transactions contemplated hereby have been
duly authorized in accordance with the requirements of Provident's
organizational documents and applicable law, and (B) the officers
authorized to execute and deliver such documents hold the offices and have
the signatures indicated thereon;
(iv) an Officer's Certificate of Xxxxxx to the effect that (A) this
Agreement and the other transactions contemplated hereby have been duly
authorized in accordance with the requirements of Litton's organizational
documents and applicable law, and (B) the officers authorized to execute
and deliver such documents hold the offices and have the signatures
indicated thereon;
(v) a certification by the Servicer that this Agreement and the
amendments contained herein are being executed and delivered in accordance
with Sections 6.04 and 10.01 of the Servicing Agreement;
(vi) opinions of Xxxxxxx and Xxxxxx LLP, special counsel to
Provident, addressed to the Trustee, the Depositor, IndyMac and the Rating
Agencies, to be dated as of the Closing Date, to the effect that the
transfers and modifications effected by this Agreement will not adversely
affect the qualification of any REMIC created under the Servicing
Agreement or result in the imposition of any REMIC related prohibited
transactions tax;
(vii) opinions of Xxxxxxx and Xxxxxx LLP, special counsel to
Provident, addressed to the Trustee, the Depositor, IndyMac and the Rating
Agencies, to be dated as of the Closing Date, to the effect that (A) this
Agreement is permitted under the Servicing Agreement, (B) the requirements
of the Servicing Agreement for the Trustees entering into the Amendment
have been satisfied, and (C) the changes in the Transaction Documents as
embodied in this Agreement do not adversely affect, in any material
respect, the interests of any Certificateholder;
(viii) opinions of Xxxxxxx, Muething & Xxxxxxx, P.L.L., special Ohio
counsel to Provident, addressed to the Trustee, the Depositor, IndyMac and
the Rating Agencies, to be dated as of the Closing Date, as to due
execution and authority for each document executed by Provident in
connection herewith;
(ix) opinions of Xxxxxxxxxxx & Xxxxxxxx, LLP, special counsel to
Xxxxxx, addressed to the Trustee, the Depositor, IndyMac and the Rating
Agencies, to be dated as of the Closing Date, as to due execution and
authority of Xxxxxx for this Agreement, and that this Agreement
constitutes a valid, binding and enforceable agreement of Xxxxxx in
accordance with its terms.
(b) Release of the escrow created pursuant to Section 5(a) above, and the
effectiveness of (I) the resignation of Provident as Servicer, (II) the
appointment of Xxxxxx as successor Servicer, and (III) the amendments to the
Servicing Agreement and Transaction Documents provided for herein are
conditioned on the occurrence of each of the following conditions precedent:
(i) Provident shall have consummated the sale of certain other
assets it holds to Xxxxxx.
(ii) The Closing Escrow Agent shall have received a written consent
(which may be delivered in paper or electronic form, including without
limitation via e-mail) to the release of such escrow from each Person
delivering signatures pages, documents, instruments or any other item to
the Closing Escrow Agent pursuant to Section 5(a) above or pursuant to a
separate escrow letter in connection therewith;
(iii) Each of the Confirmation Letters referenced in Section 5(a)(ii)
shall have been delivered (and delivery of such Confirmation Letters shall
be deemed to satisfy any requirements of the Servicing Agreement,
including without limitation Section 10.01 and Section 10.05 thereof, for
delivery of written notice to the Rating Agencies of the Agreement or its
contents); and
(iv) The Closing Escrow Agent shall have received certifications from
each of Provident, as Servicer, and Xxxxxx, as successor Servicer, of the
date of mailing of notices of servicing transfer required under the
Federal Real Estate Settlement Procedures Act, and at least fifteen (15)
days shall have passed since the sending of such notices.
(c) Upon satisfaction of each of the conditions listed in Section 5(b),
the Closing Date shall occur and the Closing Escrow Agent shall date each of the
documents so held and release them from such escrow, and all parts of this
Agreement shall immediately become effective.
(d) In the event that the conditions listed in Section 5(b) are not
satisfied on or before December 8, 2004, or if Provident shall, at any time,
notify the Trustee (with a copy to the Closing Escrow Agent) in writing that any
condition set forth in Section 5(b) cannot be met, then the Closing Escrow Agent
shall promptly (without further action by any party) return to each Person
delivering any signatures pages, documents, instruments or any other item
pursuant to Section 5(a) above or pursuant to a separate escrow letter in
connection therewith any such items so delivered by such Person.
(e) Upon the Closing Escrow Agent's receipt of notice as provided in
Section 5(d), all obligations of each party hereunder shall terminate and no
party hereto shall have any liability hereunder, excepting only the obligations
and rights of the Closing Escrow Agent pursuant to Section 5(d).
6. Address for Notices. The addresses for purposes of all notices and
correspondence related to the Servicing Agreement and Transaction Documents are
set forth on Schedule 6 hereto.
7. Capitalized Terms. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to such terms in the Servicing
Agreement. The following terms shall have the following meanings.
"Closing Date" means December 1, 2004, or such later date that is a
Business Day and on which the conditions precedent set forth in Section
5(b) have been satisfied.
"Closing Escrow Agent" means Xxxxxxx and Xxxxxx LLP, special counsel
to Provident, or such other law firm or Person as may be mutually agreed
upon by the parties hereto.
"Confirmation Letter" shall mean a letter issued by any applicable
Rating Agency to the effect that neither (a) the resignation of Provident
as Servicer under the Servicing Agreement and appointment of Xxxxxx as
successor Servicer thereunder, nor (b) the amendments effectuated by this
Agreement, will adversely affect the then current ratings on the
Certificates then being rated.
"Pre-Closing Date" shall mean November 10, 2004, or such later date
designated by Provident that is a Business Day.
"Transaction Document" means the documents set forth on Schedule
1.1.A hereto.
8. Governing Law. This Agreement shall be governed by, in all respects,
including as to validity, interpretation and effect, the internal laws of the
State of New York applicable to contracts entirely performed therein.
9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
counterparts shall together constitute but one and the same instrument. Delivery
of an executed counterpart of a signature page to this Agreement by facsimile
transmission (including by electronic transmission of a scanned file in pdf
format) shall be as effective as delivery of a manually executed counterpart of
this Agreement.
10. Ratification. Except as modified and superceded by this Agreement, the
provisions of the Transaction Documents are ratified and confirmed and shall
continue in full force and effect.
11. Benefit; Third Party Beneficiaries. This Agreement will inure to the
benefit of and be binding upon the parties hereto, the Certificateholders, the
Closing Escrow Agent and their respective successors and permitted assigns.
Except as otherwise expressly provided in this Agreement, no other person will
have any right or obligation hereunder.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on their behalf by the undersigned, thereunto duly authorized, as
of the day and year first above written.
XXXXXX XXXXXXX XXXX XXXXXX CAPITAL I
INC., as Depositor
By_______________________________________
Name: Xxxxxx Xxxxxxx
Title: Executive Director
THE PROVIDENT BANK, as Servicer
By_______________________________________
Name:_________________________________
Title:________________________________
INDYMAC BANK, F.S.B., as Servicer
By_______________________________________
Name:_________________________________
Title:________________________________
XXXXXX LOAN SERVICING LP, as Successor
Servicer
By_______________________________________
Name:_________________________________
Title:________________________________
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By_______________________________________
Name: Xxxxxxx Xxxxx
Title: Assistant Vice President
By_______________________________________
Name: Xxxxxxx Xxxxxxx
Title: Associate
CONSENTED TO:
XXXXXXX AND XXXXXX LLP,
as Closing Escrow Agent
By _________________________________
Name: Xxxxxxx X. Benz
Title: Partner
SCHEDULE 1.1.A
POOLING AND SERVICING AGREEMENT
AND OTHER TRANSACTION DOCUMENTS
Pooling and Servicing Agreement, dated as of July 1, 2002, among Xxxxxx
Xxxxxxx Xxxx Xxxxxx Capital I Inc., a Delaware corporation, as depositor,
IndyMac Bank, F.S.B., a federally chartered savings bank, as servicer, The
Provident Bank, an Ohio corporation, as servicer, and Deutsche Bank National
Trust Company, a national banking association, as trustee.
SCHEDULE 6
ADDRESSES FOR NOTICES
If to Depositor: Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxx
Telephone Number: 000-000-0000
Facsimile Number: 000-000-0000
E-mail: xxxxxxxx.xxxxxx@xxxxxxxxxxxxx.xxx
If to Provident: X. Xxxxxxx Case, Jr.
Executive Vice President; Loan Administration
National City Mortgage Co.
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Facsimile Number: 000-000-0000
If to Xxxxxx: Xxxxxx XxXxxxx
Xxxxxx Loan Servicing LP
0000 Xxxx Xxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Facsimile Number: 000-000-0000
If to IndyMac as a IndyMac Bank, F.S.B.
Servicer: 0000 X. Xxxxxxxx Xxxx.
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Facsimile Number:
Telephone Number: 000-000-0000
E-mail: xxxxxx.xxxxxxxxx@xxxxxxxxxxx.xxx
If to the Trustee: Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Attention: Trust Administration - MS02H2
Telephone Number: 000-000-0000
Facsimile Number: 000-000-0000
If to the Closing Escrow Xxxxxxx X. Xxxxx
Agent: Xxxxxxx and Xxxxxx LLP
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Facsimile Number: 000-000-0000
